PROTECTION FROM UNFAIR DISMISSAL AND THE REMEDY OF ...

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PROTECTION FROM UNFAIR DISMISSAL AND THE REMEDY OFREINSTATEMENT UNDER ZIMBABWEAN LAW

MUNYARADZI GWISAI1

ABSTRACT

This article looks at the remedy of reinstatement for unfair andunlawful dismissal and its central significance in the realisation ofemployees’ right to protection from unfair dismissal. The paper arguesthat the right to protection from unfair dismissal lies at thecornerstone of modern Zimbabwean labour law as was shown by themassive public outcry in the wake of the Supreme Court decision ofNyamande and Anor v Zuva Petroleum (Pvt) Ltd SC 43-15, whichupheld the continued application of the common law “Notice Rule”of termination on notice by the employer. The paper argues thatwithout an effective remedy to unfair dismissal, in the form ofreinstatement, the right to protection from unfair dismissal willremain a mirage. The paper makes a survey of the history ofreinstatement law starting with the traditional common law positionwhich rejected the remedy outright and the modern common lawone wherein the remedy has been recognised as a competent remedy.The paper then discusses the history of the remedy in statutesincluding the implications on the remedy of the new rights toprotection from unfair dismissal and to fair labour standards underthe Labour Act (No. 17 of 2002) and Constitution of ZimbabweAmendment (No. 20) Act, 2013. It discusses the different approachestaken by courts and asserts that only the broad approach is consistentwith the underlying principle of right to employment securityrecognised under the Labour Act and Constitution.

INTRODUCTION

The right of employees to protection from unfair dismissal is acornerstone of the labour law regime that underlies the LabourAmendment Act (No. 17 of 2002), which probably represents the mostadvanced labour legislative reform in the history of labour relationsin Zimbabwe.

1 Munyaradzi Gwisai is a registered legal practitioner and lectures in LabourLaw and Labour Relations, Faculty of Law, University of Zimbabwe, and BriggsZano Working Peoples College.

UZLJ Unfair Dismissal and Remedy of Reinstatement 25

There are powerful constitutional and legislative basis for the right.Constitutionally the right is implicit in section 65 (1) of the Constitutionwhich provides that every “person has the right to fair and safe labourpractices and standards...” Expressly the right provided for in section12B (1) of the Labour Act [Chapter 28:01]. This provides that ‘Everyemployee shall have the right not to be unfairly dismissed.’

Subversion of the employees’ right to protection from unfair dismissaland employment security has been a key feature of the currentZimbabwean labour relations system which is dominated by unitaristand neoliberal norms. This was amply demonstrated in the nownotorious Supreme Court decision of Nyamande and Anor v ZuvaPetroleum (Pvt) Ltd,2 which led to unprecedented job massacres andforced the State to legislatively reverse the effects of the decision byenactment of the Labour Amendment Act (No. 5 of 2015.) But as theZuva decision showed, this has led to major controversies and seriouslegitimacy questions not only relating to labour law but the entirelegal system. Commenting on this matter, MALABA CJ aptly observed:

The reaction to the Zuva judgment was a rush by employers...to terminate employment relationships on notice.... As largenumbers of employees were left jobless and uncompensatedfor the years they had worked for their respective employerssave for their salaries paid in lieu of notice, there was widespreadpublic outcry... The actions of employers revealed a nationalcrisis characterised by lack of protection for the employees wholost employment... Termination of sources of livelihood wroughtsevere financial hardships to households. That gave theLegislature the rational basis for the enactment of the legislationand for giving it retrospective effect.3

Thus the issue of employment security has become of profoundimportance on the Zimbabwe labour law landscape. Besides the areaof the “notice rule” that was dealt with in the Zuva decision, anothercritical area of the law of fair dismissal is that pertaining to theremedies available for unfair dismissal. In particular the extent towhich the law recognises the remedy of reinstatement for bothwrongful and unfair dismissal. As with termination of the employmentrelationship on notice, this area has also been characterised by judicialconservatism and resistance to the clear direction of reform underlying

2 SC 43 – 15.3 Greatermans Stores (1979) (Pvt) Ltd t/a Thomas Meikles Stores and Anor vs

The Minister of Public Service, Labour and Social Welfare and Anor CCZ 2 – 18.

2 6 University of Zimbabwe Law Journal 2019

the Labour Act and the Constitution. For this reason it is an area thatdeserves a closer look to avoid future judicial tragedies as happenedwith the Zuva judgment.

In this article I trace the history of the remedy of reinstatement froma common law and legislative perspective and how the courts havetreated the same as well as the implications of the right to protectionfrom unfair dismissal by reference to the Labour Act and Constitutionof Zimbabwe Amendment Act No. 20 of 2013 and applicableinternational law instruments. I argue that the import of the aboveraises radical implication on the remedy of reinstatement which thecourts must now recognise.

REINSTATEMENT: UNDERSTANDING THE TERM

Generally the most effective remedy for wrongful dismissal or unfairdismissal is that of reinstatement. Yet traditionally this remedy hasbeen unavailable under common law.

Reinstatement means “that the employee be replaced in her (his)post and remunerated.”4 The employee is restored in their old job sothat she or he “can perform the work attaching to that post.”5 Anorder for reinstatement requires the employer to treat the employeein all respects as if she or he had not been dismissed. The employee is“put back into the job which he or she occupied, restored to thebenefits they enjoyed and compensated for those lost in the interim.”6

It has been held that the term “reinstatement” simply means restoringthe employee on the payroll.7 It does not mean giving the employeeactual work to do, unless special circumstances exist such as wherethe employee’s remuneration depends on actual work being given orthe advancement of their professional or artistic development.8

4 Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 (S).5 Bramdaw v Union Government 1931 NPD 57 at 78; Zvoma v Amalgamated

Motor Corporation (Pvt) Ltd 1988 (1) ZLR 60 (H) at 74. In Chegutu Municipalityv Manyora 1996 (1) ZLR 262 (S) at 265B it was held that, Òto reinstate a personmeans in effect to put a person again into his or her former job.Ó

6 S Deakin & G Morris, Labour Law, 4th ed (Hart Publishing, 2005) 518. In Chiriseri& Anor v Plan International S-56-02, SANDURA JA, held, Òwhere an order ofreinstatement is retrospective in effect, the damages to be paid in lieu ofreinstatement must include back pay and benefits.Ó

7 Munhumutema v Tapambwa & Ors 2010 (1) ZLR 509 (H) at 513E-G, per MUTEMAJ; Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S).

8 Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S).


To that extent reinstatement is equivalent to the remedy of specificperformance under contract law. Specific performance is a well-established remedy for breach of contract, available at the preferenceof the innocent party, but subject to the discretion of the court. Thiswas well put in Farmers Co-operatives Society v Berry:9

Prima facie every party to a binding agreement who is ready tocarry out his own obligation under it has a right to demand fromthe other party, as far as is possible, a performance of hisundertaking in terms of the contract.

Wrongful dismissal is when the employee is dismissed without noticeor the employer is unable to substantiate the alleged misconductleading to the dismissal.10

Unlawful dismissal is similar and applies when the worker is dismissedwithout due notice or the employer fails to show lawful cause fordispensing with the notice,11 such as when the employer is unable tosubstantiate the alleged misconduct. It may also be dismissal incontravention of statutory provisions.

Unfair dismissal relates to a mode of dismissal derived from statuteswhereby dismissal may be unfair because there is no fair or validreason for the dismissal, (substantive fairness).12 Dismissal may beunfair because the method used to effect the dismissal is not fair,(procedural fairness). The concept of fair dismissal is ultimately derivedfrom international labour law norms.13 It is unknown to common law.14

Reinstatement is available under both common law and statute law.Statutes have adapted but also substantially modified the commonlaw.

9 91912 AD 343. See also, National Union of Textile Workers and Ors v StagPackings (Pty) Ltd & Ors 1982 (4) SA 151 (T); Commercial Careers College(1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344; and Mudukuti v FCM Motors (Pvt)Ltd 2007 (1) ZLR 183 (H) at 194B-C.

10 S Deakin & G Morris, (2005) at 403.11 J Grogan, Workplace Law, 10th ed, (Juta, 2009) 164.12 Chamwaita v Charhons (Pvt) Ltd LC/H/215/2009 at p 6.13 Initially under the Termination of Employment Recommendation, 1963 (R 119)

and subsequently the Termination of Employment at the Initiative of theEmployer Convention, 1982 (C 158).

14 J Grogan (2009) citing Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407(SCA).


REINSTATEMENT UNDER COMMON LAW

Two approaches to the issue of reinstatement are evident under thecommon law regime, the traditional and the modern position.

The traditional or classical position held that reinstatement was notavailable as a remedy for a wrongfully dismissed employee. Theemployee was restricted to damages.15 The only exception being forcivil servants. The locus classicus for this position was the case ofSchierhout v Minister of Justice.16 In Commercial Careers College(Pvt) Ltd v Jarvis 1989 (1) ZLR 304 (S) at 348 GUBBAY JA (as he thenwas) summarised the position thus:

Prior to the advent of the decision ... in National Union of TextileWorkers & Ors v Stag Packings (Pty) Ltd & Ors 1982 (4) SA 151(T) it had become commonplace to assert that in the case of acommon law employee who had been wrongfully dismissed nocourt of law could compel the employee to allow him to performhis duties; for to do so would amount to an order for specificperformance of a contract for personal services of a continuingnature, a remedy not available to the employee, who wastherefore restricted to a claim in damages.17

Under the classical position, reinstatement was not available, as arule of law or legal principle. This was unlike in other contracts werethe court “will as far as possible give effect to a plaintiff’s choice toclaim specific performance,” subject to the discretion of the court.18

Several reasons were advanced for denying the remedy. Firstly that“such a contract is for personal services of a continuing nature andbecause of the close personal relationship between persons who havelost trust in each other, which makes it difficult for the court to provideconstant supervision for the enforcement of its order”.19 Denial was

15 National Union of Textile Workers & Ors v Stag Packings (Pty) Ltd & Ors 1982(4) SA 151 (T) at 158H; Myers v Abrahamson 1952 (3) SA 121 at 123 – 125; Seegenerally - A Rycroft and B Jordaan, A Guide to South African Labour Law 2nded, (Juta, 1992) 101 – 103; and R Christie (2006) 528.

16 1926 AD 99 at 107 (INNES CJ).17 ADAM J had earlier on dealt comprehensively with the applicable case law in

Zvoma v Amalgamated Motor Corporation (Pvt) Ltd 1988 (1) ZLR 60 (H).18 Haynes v Kings Williamstown Municipality1951 (2) SA 371 (A) at 378 – 380,

cited in the Zvoma case at 72. Also Farmers Co – operatives Society v Berry1912 AD 343 at 350.

19 Zvoma v Amalgamated Motor Corporation (Pvt) Ltd supra at 69, citing NationalUnion of Textile Workers & Ors v Stag Packings (Pty) Ltd & Ors,at 154; andSchierhout v Minister of Justice at 107 – 109.


thus based on the “inadmissibility of compelling the employer toemploy another whom it does not trust in a position which imports aclose relationship”.

Secondly was the reason of absence of mutuality of remedies. Nocourt could force an employee to work faithfully and diligently. Furtherit was unjust to compel the employer to reinstate an employee it nolonger wanted, when the same remedy could not be effected againstan employee who was in breach of her or his contract. The laterwould amount to forced labour or slavery which is prohibited understatutes and public policy considerations.

Finally was the argument that damages provided an adequatesubstitute for specific performance. After all the employee did nothave a guarantee of employment for life for the contract could beterminated without any reason on tender of the due notice, the noticerule.20

The reason for the exception for civil servants was elaborated inSchierhout v Minister of Justice at 107. It is premised on the fact thatthe civil servant “contracts at his appointment that he will serve theState in accordance with statutes (and)... retains his position untilduly removed or superannuated.” The civil servants’ employmenttenure is protected by statutes and regulations which contain elaborateand entrenched provisions against arbitrary dismissal, which is what“differentiates the position of a civil servant from that of an ordinaryemployee.” The effect being that any dismissal not in compliancewith statutes is a nullity. “So that what is done contrary to thatprohibition of the law is not only of no effect, but must be regardedas never having been done.”

The above conclusion is further supported by the special nature ofthe relationship of civil servants and the State. It is not a relationshipof a personal nature or a close personal relationship as of the ordinaryemployee.

The net effect is that under common law reinstatement is theautomatic remedy for a wrongfully or unlawfully dismissed civil servant- Chairman of the PSC v Marumahoko, PSC & Anor.21

20 A Rycroft and B Jordaan, (1992) 101; S Deakin & G Morris, (2005) at 400, citingReda v Flag Ltd [2002] ITLR 747 [Privy Council].

21 1991 (1) ZLR 27 (H).


Modern Common Law Position

The classical position was subsequently rejected, hesitantly initially,22

but definitively in the decision of the full Transvaal bench in NationalUnion of Textile Workers and Ors v Stag Packings (Pty) Ltd & Ors.23

The court described the position in Schierhout v Minister of Justiceof denying reinstatement to the ordinary employee as “erroneous”with DIJKHORST J holding at 158H:

In my view the approach to the application of the discretion inrespect of specific performance laid down in Haynes case isequally applicable to the case of the wrongful dismissal of anordinary servant. This does not mean that the factors inSchierhout’s case, why in such a case an order for specificperformance should generally speaking not be granted, shouldbe disregarded. They are weighty indeed and in the normal casethey might well be conclusive. But that is a far cry from sayingthat the court should therefore close its eyes to other materialfactors and refuse to evaluate them.

The above sentiments were endorsed by Zimbabwean courts, startingwith Zvoma v Amalgamated Motor Corporation (Pvt) Ltd,24 but fullyin Commercial Careers College (Pvt) Ltd v Jarvis.25 In the latter casethe court endorsed the conclusion in National Union of Textile Workersaffirming that there is “no legal principle for not ordering specificperformance of an employment relationship”. The court stated that -“This bold decision has much to commend it and is to be welcomed.”

22 One of the first cases to cast doubt on the classical position was in Myers vAbrahamson 1952 (3) SA 121 at 123 – 125 where the court stated, Òl doubtwhether the practice of the Court in allowing only the particular remedy ofdamages to the wrongfully dismissed employee can rightly be elevated to arule of lawÉÓ Stewart Writson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) was moredecisive and followed in subsequent decisions. See - SACCAWU & Ors v SteersFast Food (1993) 2 LCD 125 (LAC); Grinaker Electronic Holdings (Pty) Ltd t/aGrinel v EAWTUSA (1991) 12 ILJ 1284 (LAC) and Haworth & Associates CC vMpanya & Ors (1992) 13 ILJ 604 (LAC). This position subsequently receivedlegislative endorsement under s 193(2) of the RA, 1995, which made it explicitthat the reinstatement or re-employment is the primary remedy for unfairdismissal subject to some very narrowly tailored excerptions. See also Bassonet. all (2002) 372.

23 1982 (4) SA 151 (T).24 At 73-74. Also, Art Corporation Ltd v Moyana 1989 (1) ZLR 304 (S) at 313.25 1989 (1) ZLR 304 (S) at 314.


Restrictive ApproachAlthough the courts changed their position of rejecting reinstatementas a principle, the hostility to the remedy continued. This was reflectedin a line of cases that followed a restrictive approach in applying theremedy, and a broad one that applied it broadly as the primary remedyfor wrongful dismissal.

The restrictive approach applies the remedy of reinstatement butlimiting it to exceptional circumstances. For instance in the Zvomacase at 75 it was held that “...unless there is a clear and expressstatutory right of reinstatement, generally the considerations outlinedin Schierhout’s case by INNES CJ would normally weigh heavily againstthe grant of specific performance.” In Hama v NRZ , the court held

Although reinstatement is clearly the primary remedy for unfairdismissal provided by law, very few successful applicants areawarded it. The usual remedy for successful applicants iscompensation. Reinstatement is not the only or inevitableremedy for wrongful dismissal. It is a remedy.26

Similar positions are evident in other jurisdictions.27

Broad Approach — Reinstatement as Principal RemedyOther courts have pursued a broad approach, which takesreinstatement as the primary remedy for wrongful dismissal and unfairdismissal. This is especially for “statutory” employees whose conditionsof employment are protected by labour legislation including protectionfrom unfair dismissal. The position of such employees can hardly bedistinguished from that of civil servants given their level of protectionfrom arbitrary dismissal. In cases of unfair dismissal reinstatementmust be the primary remedy. The reasons for this were aptly capturedby GUBBAY CJ in Commercial Careers College (Pvt) Ltd v Jarvis, supra:

Even if one were to favour the restrictive approach, which l donot, it is important to appreciate that in casu, the position ofthe employee is somewhat different from the ordinary employee,for the tenure of her employment is protected by legislature…Consequently it may be argued with some force that theemployee falls into the same category as that of a public servant,making the principle discussed by INNES CJ … applicable.

26 1996 (1) ZLR 664 (S). See also,United Bottlers v Kaduya 2006 (2) ZLR 150 (S)CHIDYAUSIKU CJ.

27 O’Laoire v Jackel International Ltd [1990] ICR 197, 201, cited in Deakin &Morris (2005) 519.


In the above matter the court decided to leave the question open,and holding that there were sufficient factors that indicated grantingreinstatement at the discretion of the court, and in that caseproceeded to order reinstatement.

The modern common law position has been affirmed in variousdecisions of the Zimbabwean courts. In Art Corporation v Moyana,28

the court held that, “the obvious remedy for unjustified (unfair)involuntary termination is re-employment, if the employee so wishes,otherwise compensation… reinstatement is clearly the primary remedyfor unfair dismissal.”29 In Olivine Industries (Pvt) Ltd v Nharara30 itwas held that where “an employee is found to have been wrongfullydismissed, reinstatement is normally ordered.”

The broad approach articulated by GUBBAY CJ in fact receivedlegislative endorsement under s 29 of the Labour Amendment Act(No.7 of 2005) which placed the onus to prove that the employmentrelationship is no longer tenable, on the employer, including thepossible imposition of punitive damages where reinstatement is notordered. As argued below, the substituted s 89 (2) (c) (iii) LA makesreinstatement the first and primary remedy for unfair dismissal. Thisposition is also affirmed in other jurisdictions which provide for fairdismissal legislation, notably South Africa and the United Kingdom.31

Reinstatement is therefore the first and primary remedy for wrongfulor unlawful dismissal, unless the employee does not desire such remedyand subject to the court’s discretion. In appropriate circumstancesthe court or a determining authority may thus issue a straight orderof reinstatement, as was done in Commercial Careers College (Pvt)Ltd v Jarvis, supra. In Blanket Mine (Pvt) Ltd v Tlou it was held:32

28 1989 (1) ZR 304 (S).29 Art Corporation v Moyana, 1989 (1) ZR 304 (S); Ruturi v Heritage Clothing

(Pvt) Ltd 1994 (2) ZLR 374 (S).30 2006 (1) ZLR 203(S) at 205G.31 See J Grogan (2009) at 174 stating, ÒSection 193 (2) makes it clear that

reinstatement is the preferred remedy for unfairly dismissed employees, andthat compensation should only be granted instead only when one or more ofthe exceptions mentioned in paragraphs (a) to (d).Ó S Deakin & G Morris (2005)518 equally state that under s 118 of ERA 1996, Òthe preferred remedies forunfair dismissal are reinstatement, re-engagement and monetary compensation,in that orderÓ citing O’Laoire v Jackel International Ltd [1990] ICR 197, 200.

32 LC/MT/22/2005 [MATSHANGA P].


I find that it is equitable, reasonable and just that when anemployee loses his job in circumstances as the one that happenedin casu, then a straight order of reinstatement is perfectly inorder.

The fact that reinstatement has in the past been rarely granted reflectsjudicial attitudes and those of employees in particular circumstances.Many employees may not claim it, simply because it has not beeneasily granted in the past, thus becoming a self-fulfilling prophesy.Also unlikely to claim are employees of small employers who do nothave the benefit of protection from a trade union-protectedenvironment and may fear renewed contact with the manager or ownerwho dismissed them.

A further reason is the attitude of the courts, which tend to acceptwithout much question employer’s reluctance to reinstate and a beliefthat an imposed reinstatement will not work. However, as Deakin &Morris point out, this perception may not be justified, and in fact“there is evidence that re-employment rarely produces disruption torelations within the undertaking concerned and that most reinstatedor re-engaged employees stay with the employer for a reasonablelength of time after the order is made.”33

Onus and Factors to Consider in the Exercise of Discretion

Consistent with general common law principles, the onus is on theemployer, as the party seeking to avoid specific performance, toestablish the facts and circumstances, which the court should considerin the exercise of its discretion. 34 A bald statement that theemployment relationship is no longer tenable will not do, and wascorrectly rejected in Dairibord Zimbabwe Ltd v Muyambi.35

The court then exercises its discretion on whether or not to grantreinstatement.

33 S Deakin & G Morris (2005) 52.34 Farmers’ Co-op Society (Reg) v Berry 1912 AD 343, held at 350, Ò ‘it is against

conscience that a party should have a right of election whether he would performhis contract or only pay damages for the breach of it.’ The election is ratherwith the injured party, subject to the discretion of the Court.Ó

35 S-22-02 at pg 7. Also, Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398(A) at 442E-443H, cited in Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe(Pvt) Ltd 1993 (1) ZLR 21 (H) at 30.


The discretion is “not completely unfettered” but has to be exercisedjudicially and not capriciously or on wrong principles of law in orderto ensure that justice is done.36

Courts have looked at various factors in the exercise of the discretion.The main issue is whether sufficient evidence has been established toshow that the employment relationship “has soured beyondreconciliation”,37 or “is no longer tenable”38 or that reinstatementwould result “in the continuation of an intolerable personalrelationship”.39

The above is an objective assessment and may arise even in a situationwhere “no blame whatsoever attaches to the employee.”40

In the aforementioned assessment, the factors cited in the Schierhoutcase are weighty but not exhaustive. Other relevant factors may beconsidered, such as those mentioned in Haynes v KingswilliamstownMunicipality.41 These include, impossibility of performance; thatreinstatement would be unduly and unreasonably harsh on thedefendant, or would produce injustice or would be inequitable underall the circumstances.

The Labour Act provides further statutory examples under s 89 (2) (c)(iii), proviso (ii). These are “size of the employer, the preferences ofthe employee, the situation in the labour market.” The list is notexhaustive as the section also refers to “any other relevant factors.”Under this rubric can be included factors like level of skills,qualifications, age and levels of unemployment in the particularindustry. Examples of factors that have been considered by the courtsare numerous, including:

36 Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR326 (S) at 332 – 333; Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989(1) ZLR 344.

37 Hama v NRZ 1996 (1) ZLR 664 (S). Also - Olivine Industries (Pvt) Ltd v Gwekwerere& Ors 2005 (2) ZLR 421 (S) at 428F; Chitambo v ZESA Holdings (Pvt) Ltd & AnorLC/H/331/2013.

38 The phrase used in s 89 (2) (c ) (iii) Proviso (ii) LA 2002.39 Commercial Careers College (1980) (Pvt) Ltd v Jarvis, supra at 349F, where

GUBBAY CJ commented, Òone which would make it impossible for the employeeto perform his duties either to his own satisfaction or that of the employer.Ó

40 Commercial Careers College (Pvt) Ltd v Jarvis, supra, at 349F.41 1951 (2) AD 371 (A) at 378H-9A.


• In circumstances of loss of confidence by the employer with asenior employee, denial of reinstatement was held justified.42

Where there was a “breakdown in the relationship between theappellant and the respondent, with no degree of trust or respectremaining on either side,” as in Winterton, Holmes and Hill vPaterson.43 In this case a professional assistant, engaged in adispute with the employer, traded insults with senior partners ofthe firm and tried to get an order for civil imprisonment againstthem for contempt of court.

• The moral blameworthiness of the parties. Reinstatement was heldappropriate because the employer had “dirty hands”, as whenthe employer acted in flagrant bad faith,44 or in breach offundamental rights of employees,45 or because the moralblameworthiness of the employee was beyond reproach.46 Howeverreinstatement was held inappropriate where the employee tookalternative employment during suspension.47

• The nature of the breach or unfair labour practice. Where itinvolved breach of a fundamental right of the worker, such as tomembership of a trade union or to protection from unfair dismissal,then reinstatement was held the most appropriate remedy.48

• The size and nature of the employer. The bigger the employer theless likely that it will be held that the relationship is no longertenable, since personal contact is minimum.49 The same was held

42 Muringi v Air Zimbabwe Corporation 1997 (1) ZLR 355 (S) (involving a managingdirector); Blue Ribbon Foods Ltd v Dube & Anor 1993 (2) ZLR 146 (S).

43 1995 (2) ZLR 68 (S).44 In Banya v Madhater Mining Co (Pvt) Ltd LC/H/67/2008 where there was an

order for reinstatement by consent but the employer subsequently renegedstating that the employee should have been retrenched. In Masvingo v BaloyiLC/MS/01/09 the employer failed to comply with s 92E (2) LA 2002.

45 Commercial Careers College (1980) (Pvt) Ltd v Jarvis, supra, where the employerdismissed the employee the day after a visit from the labour officer after theemployee filed a complaint.

46 Commercial Careers College (1980) (Pvt) Ltd v Jarvis, supra.47 United Bottlers v Kaduya 2006 (2) ZLR 150 (S) at 153C-D; Zimsun v Lawn 1988

(1) ZLR 143 (S) 15.48 National Union of Textile Workers and Ors v Stag Packings (Pty) Ltd & Ors 1982

(4) SA 151 (T); Jiah & Ors v PSC & Anor 1999 (1) ZLR 17 (S).49 ZUPCO v Chisvo 1999 (1) ZLR 67 (S); Commercial Careers College (1980) (Pvt)

Ltd v Jarvis.


for an employee in a college or state corporation.50 The oppositemay apply for a small employer.51

• The seniority of the employee and the nature of the job. Thecourts are more likely to rule that the employment relationship isno longer tenable in relation to a managerial executive than ajunior employee, especially in a small company.52

• The intention of the legislature. In Commercial Careers College(1980) (Pvt) Ltd v Jarvis, supra, it was held that there was needfor “account to be given of the law giver’s object in protectingthe tenure of office of employees. To deny the remedy ofreinstatement is to circumvent it, albeit upon pain of renderinghimself liable to criminal prosecution and to a civil action fordamages.”53 The above is particularly so where denial ofreinstatement would result in subversion of a basic constitutionallabour right or fundamental right of employees.54

REINSTATEMENT UNDER STATUTES

The common law principles on reinstatement have been codified,adapted and modified by statutes. Reinstatement is available understatutes, in particular the Labour Act. There are several circumstancesunder which the remedy of reinstatement may apply under the LabourAct.

The first is when the Labour Court substitutes its own decision for adecision made by a lower tribunal. This may arise under s 89 (2) (a)(ii) of the Act where the Labour Court has power to substitute its owndecision in place of that appealed against. Arbitrators enjoy the samepower under s 98 (9) of the Act. It may also arise in terms of s 93 (5b)of the Act when the Labour Court determines an application forconfirmation of a draft ruling by a labour officer or designated agent.

50 Commercial Careers College (1980) (Pvt) Ltd v Jarvis, supra.51 Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S) at 250; Winterton,

Holmes and Hill v Paterson 1995 (2) ZLR 68 (S), (a law firm).52 A senior employee was held properly denied reinstatement in Muringi v Air

Zimbabwe Corporation 1997 (1) ZLR 355 (S); but not for college tutor inCommercial Careers College (1980) (Pvt) Ltd v Jarvis.

53 See also, Mushaya v Glens Corporation 1992 (1) ZLR 162 (H).54 For instance dismissal of employee on lawful maternity leave – ARDA v Murwisi

LC/H/90/04.


The second circumstance applies when a labour officer or designatedagent makes a draft ruling on a dispute of right or unfair labour practicein terms of s 93 (5) (c) of the Act.

The third circumstance is when the Labour Court or an arbitratorexercise their powers in terms of s 89 (2) (c) of the Act in relation toa section 93 (7) application. This is where a conciliatory authority hasissued a certificate of no settlement but it is not possible for anyreason to refer the dispute to compulsory arbitration or the periodfor conciliation has expired but the conciliatory authority refuses forany reason to issue the certificate of no settlement.

The fourth and final circumstance is where the Labour Court or theappropriate determining authority makes a finding that the dismissalis affected by a fatal procedural irregularity. This may arise fromdecisions by labour officers or designated agents under the new s 93(5), or awards of an arbitrator, or a determining authority under anemployment codes or other relevant body. It also indirectly ariseswhen the Labour Court exercises its review jurisdiction.

The final circumstance when reinstatement arises under the LabourAct is in terms of the model code made under the Labour (NationalEmployment Code of Conduct) Regulations, 2006.

GENERAL POWER OF LABOUR COURT TO ORDER REINSTATEMENT ON APPEAL

On appeal, the Labour Court has a general power to confirm or varythe decision appealed against or substitute its own decision in termsof s 89 (2) (a) (ii) of the Act. This reads:

(2) In the exercise of its functions, the Labour Court may -(a) in the case of an appeal –

(i) ...(ii) confirm, vary, reverse or set aside the decision,

order or action that is appealed against, orsubstitute its own decision or order.’ (Emphasisadded).

An arbitrator enjoys similar powers under compulsory arbitration interms of s 98(9) of the Act. This states that ‘In hearing and determiningany dispute an arbitrator shall have the same powers as the LabourCourt.’

The above power of the Labour Court under s 89 (2) (a) includes thepower to make a straight order for reinstatement, without any


alternative for damages as would be required under s 89(2)(c)(iii) ofthe Labour Act. This position was affirmed in obiter by GARWE JA inZimnat Life Assurance Ltd v Dikinya,55 confirming the same conclusionthat this author had earlier argued for.56

Madhuku holds a contrary view, asserting that s 89(2)(a) of the Actdoes not confer such power on the Labour Court because whenoperating under that section it would be operating as a court of appealand not a court of first instance.57 That the proper basis of the powersof the Labour Court are under s 89(2) (c), where supposedly the LabourCourt cannot issue a straight order for reinstatement. That it is ajurisprudential absurdity for the legislature to have conferred anemployee who reaches the Labour Court via s 93(7) less rights thanthe one who lands in the same court as an appellant.

This position is also reflected in Mandiringa & Ors v National SocialSecurity Authority58 where MAKARAU JP (as she then was) stated,albeit in obiter, that:

It is therefore the settled position of our law that, in orderingreinstatement in terms of the Labour Act, the Labour Court,labour officers and arbitrators appointed under the Act are boundto assess damages in lieu of reinstatement. Any judgment,determination or award by these officials that fails to do so isliable to be interfered with as misdirection or as failing to complywith the Act in a material way. An award that ordersreinstatement of applicant without awarding a specified amountof damages in lieu of reinstatement is incomplete andconsequently, incompetent and cannot be registered in termsof s 98(14) of the Act as an order of this court.

The above arguments are not persuasive but bolster a conservativepro-employer interpretation of the Labour Act centred around aconstriction of the powers of the Labour Court. This has been the

55 S-30-2010.56 M Gwisai, Labour and Employment Law in Zimbabwe: Relations of work under

neo-colonial capitalism (ZLC and UZ, 2006) 124-25.57 L Madhuku, Labour Law in Zimbabwe, (FES with Weaver Press, Harare, 2015)

238-40.58 2005(2)ZLR 329(H) at 333F. The basis of the decision being Hama v National

Railways of Zimbabwe 1996 (1) ZLR 664(S). The same authority was followedin Olivine Industries (Pvt) Ltd v Gwekwerere 2005 (2)ZLR 421(S) at 428F. GirjacServices (Pvt) Ltd v Mudzingwa 1999(1) ZLR 243 (S) at 250C-D.


essential direction of the dominant section of the superior courts inthe last decade consistent with the demands of neoliberal capitalism.

In the Mandiringa and Gwekwerere decisions, the court assumed thecontinued application of the decision in Hama v National Railways ofZimbabwe59 despite the material changes in the wording of therelevant provisions of the statutes. As correctly argued by Mucheche,the court “failed to make a distinction between powers of the LabourCourt hearing an application and an appeal” under s 89(2)(c) and s89(2)(a) respectively.60 In Mandiringa the court though had hesitancyin the firmness of its conclusion.61

The distinction Madhuku draws between the jurisdiction of the LabourCourt as a court of “appeal” and as a “ court of first instance” is, withrespect, misplaced. It is now well-established that the appealjurisdiction of the Labour Court is that of an appeal in the wide sense,going beyond an ordinary appeal, an appeal stricto sensu. Citingextensive authorities MUTEMA P (as he then was) discussed thedifferent types of appeals in Chiwara v Crystal Candy.62 In the appealin the ordinary sense there is a rehearing on the merits but limited tothe evidence or information on which the decision under appeal wasgiven, and in which the only determination is whether the decisionwas right or wrong. No fresh evidence may be heard. On the otherhand an appeal in the wide sense, may involve an appeal by way ofrehearing or an appeal de novo. In the former there is a rehearing onthe documents, but with a special power to receive further evidenceon the appeal.63 An appeal de novo involves a fresh hearing with the

59 1996 (1) ZLR 664 (S).60 C Mucheche, Law and practice guide on labour dismissal remedies in Zimbabwe:

Reinstatement and damages (in foreign currency), (African DominionPublications, Harare, 2014) 52.

61 MAKARAU JP stated 334 that, ÒAssuming that l have erred in holding that anaward that does not specify an award of damages in lieu of reinstatement isincompetent ÉÓ

62 LC/H/213/2009 at p 2-3 Authorities cited included, Words and Phrases LegallyDefined 3rd Ed Supp 2004, Lexis Nexis, Butterworths p. 49; and specifically –Quilter v Mapleson (1882) 9 QB 672 at 676; Builders Licensing Board v SperwayConstructions (Sydney) Pty Ltd (1976) 135 CLR at 619. Generally see also, ALB& Anor v ZAIWU 1998 92) ZLR 196 (S) at 202 summarising the classification ofappeals cited in S v Mohamed 1977 (2) SA 531 (A) at 538 and Metal & AlliedWorkers Union v Min of Manpower 1983 (3) SA 238 (N) at 242. Also, ContinentalFashions (Pvt) Ltd v Mupfuriri & Ors 1997 (2) ZLR 405 (S) at 410.

63 Wigg v Architects Board of South Australia (1884) 36 SASR 111 at 113. Appliedin Guta v MBCA Bank LC/H/79/2009.


parties being entitled to begin again and adduce new evidence, thatis a complete rehearing of and fresh determination of the merits ofthe matter with or without additional evidence or information.64

In Zhakata v Mandoza N.O. and N M Bank Ltd,65 Bhunu J held that,“an appeal in the context of the Labour Relations Act is an appeal notin the ordinary sense...” This is correct. On appeal the Labour Courtcan decide a matter on the record as in the ordinary appeal, but inaddition may also conduct a hearing into the matter in terms of s89(2)(a)(i) of the Act.66 The Court is not bound by the strict rules ofevidence and the court may ascertain any relevant fact by any meanswhich the presiding officer thinks fit and which is not unfair or unjustto either party.67

The above wide appeal jurisdiction of the Labour Court is notaccidental but designed to facilitate its role as the apex body for theresolution of disputes and unfair labour practices in a mannerconsistent with the purpose and objects of the Act of achieving socialjustice and democracy in the workplace as stated in s 2A(1) of theAct. The superior courts have since affirmed this exclusive equityjurisdiction enjoyed by the Labour Court unlike the civil courts.68

A restrictive interpretation of the powers of the Labour Court under s89(2)(a) would fatally cripple the equity jurisdiction of the LabourCourt, in particular its power to give effective remedies for breach ofrights conferred under the Act, including fundamental employeesrights. Such a reading is inconsistent with the purposive interpretationmodel compelled by s 2A(2) of the Labour Act.

In any case one if one takes into account the history of the section itbecomes evident that the legislative intention was always one ofclothing the Labour Court with the broadest powers rather than to

64 Sweeney v Fitzhardinge (1906) 4 CLR; Simpson Ltd v Arcipreste (1989) 53 SASR9

65 HH – 22 – 05 . See also, Tuso v City of Harare HH -1 – 04; Chahweta v NationalFoods Ltd LC/H/173/2009 where ÒappealÓ under the Act was held to includean appeal based on grounds of review.

66 Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR 220 (S).67 Section 90A Labour Act 2002.68 Madhatter Mining Co v Tapfuma S-51-14; Fleximail Ltd v Samanyau & Ors S-21-

14; Malimanji v CABS 2007 (2) ZLR 77 (S) at 79D-E; Zhakata v Mandoza N.O. &N M Bank Ltd HH – 22 – 05.


narrow them. The origins of s 89(2)(a) of the Labour Act lies in s 107of the Labour Relations Act No. 16 of 1985. This read:

In determining an appeal in terms of this Part, the Tribunal mayconfirm, vary or set aside the decision appealed against andmake an order accordingly, and may include in such order anyorder as to costs that it thinks fit.

The above section was carried through, with some modifications insubsequent amendments of the Labour Relations Act.69 In Ruturi vHeritage Clothing (Pvt) Ltd,70 the court ruled that s 107 provided theLabour Relations Tribunal with broad powers including the power tomake an order for reinstatement, where appropriate. Similarly in ArtCorporation v Moyana,71 the court also ruled that the broad powersof a determining authority under the old s 111(1)LRA 1985 to “makesuch order as it thinks appropriate for determining the dispute orrectifying the unfair labour practice concerned”, included thediscretion to grant or decline reinstatement.

The restriction of the general power previously granted under s 111LRAcame through the new s 96(1)(c) introduced by the Labour Relations(Amendment) Act, 1992. This provided a proviso requiring a mandatoryalternative of damages to reinstatement or employment. The newprovision was replicated in s 89(2)(c)(iii) introduced by s 29 of Act No.17 of 2002 and subsequently further amended by s 29 of Act No. 7 of2005, which added two further provisos. What is notable about thelast two amendments is that the formulation of the application of thesection was narrowed to special applications to the Labour Court unders 93(7) of the Act, but not applied to the general powers of the LabourCourt as had been the case with s 96(1)(c) of the Labour RelationsAct. It was improper therefore to apply the Hama precedentautomatically to the changed provisions of s 89(2)(c)(iii) of the LabourAct, without first analysing the implications of the change from thewide formulation under s 96(1)(c)LRA, to the narrow formulation under89(2)(c)(iii).

69 Presently s 89(2)(2)(a)(ii) and (c) LA 2002.70 1994 (2) ZLR 334 (S).71 The relevant provisions were s s 107 and 112 LRA. The court had earlier on

reached the same decision in relation to a similar provision pertaining to thepowers of a labour relations officer – that is s 111 (2) LRA 1985 - Art Corporationv Moyana 1989 (1) ZLR 304 (S).


The real jurisprudential absurdity is not in the supposed inconsistencybetween the powers under s 89(2)(a) and s 89(2) (c) of the Act. Asargued below such inconsistency does not arise. The fundamentaljurisprudential problem with the approach advocated for by Madhukuis that it creates an inferior set of rights for employees covered by anAct whose ostensible purpose is to advance social justice and equityin the workplace compared to a common law regime, which courtshave consistently recognised as offering inferior rights. There is noprovision in either sections providing for the ouster, whether expresslyor by necessary implication, of the now well established common lawprinciple that reinstatement is a competent remedy for wrongfuldismissal, but available at the discretion of the court.

Powers of Labour Court and labour officers under s 93(5)LA2015

The Labour Court is empowered under the new s 93(5b) of Act No. 5of 2015 to confirm a draft ruling by a labour office or designatedagent “with or without amendment.” The section is not directly linkedto the powers of the court under s 89, which is unsatisfactory. However,the power is broadly couched suggesting that the Labour Court retainsbroad power to make an appropriate order as it has for an appealunder s 89(2)(a). The issue remains to be tested.

A similar situation obtains in relation to labour officers/designatedagents when making a draft ruling in relation to a dispute of right orunfair labour practice under the new s93(5)(c) of the Act. If the disputeor unfair labour practice is a dispute of right, the labour officer, may,upon a finding on a balance of probabilities, make a ruling that –

(i) The employer or other person is guilty of an unfair labourpractice; or

(ii) The dispute of right or unfair labour practice must beresolved against any employer or other person in a specificmanner by an order –A. directing the employer or other party concerned to

cease or rectify the infringement or threatenedinfringement, as the case may be, including paymentof moneys, where appropriate;

B. for damages for any loss...

As with the powers of the Labour Court in relation to confirmation orvariation of a draft ruling, the above powers of the labour officer areloosely and inelegantly drafted. They are bound to create confusion.


The powers though are couched widely, in a manner that gives thelabour officer broad powers in relation to the draft ruling. Followingon precedent, this seems to confer on the labour officer the power toorder reinstatement after consideration of the pertinent factors ofwhether the employment relationship is no longer tenable. The samewas upheld in Mtetwa v Businesss Equipment Corporation72 wherethe appeals committee made a straight order for reinstatement withoutan alternative or damages. This was upheld by the court which heldthat the employee could not subsequently opt for damages. This is ina similar manner to that of a determining authority under s 111 of theLabour Relations Act, 1985.73 Section 111(1) though was much betterworded on the powers of the labour officer, whilst s 111(2) gave explicitexamples of how the general power under s 111(1) could be exercised,including an order for reinstatement. The provisions read:

(1) After due inquiry into, and consideration of any matterthat has been referred to it in terms of paragraph (d) ofsubsection one hundred and nine, a determining authoritymay-(a) make such order as it thinks appropriate for

determining the dispute or rectifying the unfairlabour practice concerned; or

(b) ...(2) Without derogation from the generality of subsection (1),

an order made in terms of that subsection may provide foror direct, as the case may be –(a) back pay from the time of the dispute or unfair labour

practice concerned; ...or(b) ....or(c) reinstatement in a job; or(d) insertion into a seniority list at an appropriate point;

or(e) promotion or, if no promotion post exists, pay at a

higher rate pending promotion; or(f) employment in a job; or(g) payment of legal fees and costs; or(h) cessation of the unfair labour practice; oras may be appropriate

72 S-25-04. Business Equipment Corporation v Mtetwa S-14-07 affirmed thecorrectness of the earlier decision.

73 Art Corporation v Moyana, supra.


The above formulation of the powers of a determining authority underthe old Labour Relations Act, 1985 were clear and concise, and couldbe used as a basis to amend the new s 93(5)(c) to remove the currentconfusion.

REINSTATEMENT UNDER S 89(2)(C) LABOUR ACT

The third circumstance when reinstatement applies under statutes isin terms of s 89(2)(c)(iii) of the Labour Act. Reinstatement oremployment in a job is provided as a specified remedy under s 89(2)(c)(iii) of the Act. The section reads:

(2) In the exercise of its functions, the Labour Court may, ...(c) in the case of an application made in terms of

subparagraph (i) of subsection (7) of section ninety-three, make an order for any of the following or anyother appropriate order –(iii) reinstatement or employment in a job:Provided that –

(i) any such determination shall specify an amountof damages to be awarded to the employeeconcerned as an alternative to his reinstatementor employment;

(ii) in deciding whether to award damages orreinstatement or employment, onus is on theemployer to prove that the employmentrelationship is no longer tenable, taking intoaccount the size of the employer, the preferencesof the employee, the situation in the labourmarket and any other relevant factors;

(iii) should damages be awarded instead ofreinstatement or employment as a result of anuntenable working relationship arising fromunlawful or wrongful dismissal by the employer,punitive damages may be imposed.

There is considerable controversy over the interpretation of thesection. Firstly whether it solely applies to s 93(7) applications or isof broader effect. Under s 93(7)(ii) of the Act when a conciliatoryauthority has issued a certificate of no settlement but it is not possiblefor any reason to refer the dispute to compulsory arbitration or thelabour officer for any reason refuses to issue a certificate of nosettlement after the prescribed period allowed for conciliation, any


party to the dispute may apply to the Labour Court, in case of adispute of right, for an order in terms of s 89(2)(c) of the Act. Anotherissue is what is the effect of proviso (i) to s 89(2)(c)(iii) compelling analternative order for damages when reinstatement or employment isawarded and who has the right of choice to effect the alternative,the employee or the employer. Related to the above is whether theprevious locus classicus in this area, Hama v National Railways,74 stillapplies, given the amendments effected by s 29 of the LabourAmendment Act, No. 5 of 2005.

History of Section

The controversies arise from the wording and history of the section.The original formulation of the precursor to the section, namely s 107of the Labour Relations Act, 1985, was broadly worded, and withoutthe qualification of the damages alternative. The same applied todetermining authorities under s 111(1)LRA 1985. Section 112(2) LRA1985 gave specific examples of how the power could be exercised,including making an order for reinstatement. The courts held that interms of the above the Tribunal and determining authorities could, inappropriate circumstances, award a pure order of reinstatementwithout an alternative of damages.75

The first qualification arose with s 96(1) (c) of the Labour RelationsAmendment Act No. 12 of 1992. It provided:

Without derogation from the generality of sections ninety-threeand ninety five, a determination made in terms of those sectionsmay provide for –

(a) back pay from the time when the dispute or unfair labourpractice arose;

(b) ...(c) Reinstatement or employment in a job provided that any

such determination shall specify an amount of damages tobe awarded to the employee concerned as an alternativeto his reinstatement or employment.

In Hama v National Railways of Zimbabwe, supra, the court held thatby virtue of s 96(1) (c)LRA 1992 an order for reinstatement must be

74 1996 (1) ZLR 664 (S).75 Art Corporation v Moyana 1989 (1) ZLR 304 (S); Ruturi v Heritage Clothing

(Pvt) Ltd 1994 (2) ZLR 374 (S).


accompanied with an alternative order for the payment of damagesin lieu of reinstatement. The case became the locus classicus.76

The proviso to s 96(1)(c)LRA 2002 did not specify who had the right tomake the choice between reinstatement and damages, between theemployee and the employer. Hama was silent on the matter but inBHP Minerals Zimbabwe (Pvt) Ltd v Takawira77 the court held thatalthough the matter had not been dealt with directly the courts seemedto assume the choice lay with the employer. The court ruled thatlogically it made sense to interpret the proviso as for the benefit ofthe employer. “The employer is given the opportunity to, as it werebuy his way out of his obligation. It makes no sense to allow theemployee to claim money in place of reinstatement.”

The effect of the above was to effectively neutralize the remedy ofreinstatement under the Labour Act. It gave the employer a veto overits application hardly any different from the old classical commonlaw position that had proscribed reinstatement as a matter of law.The courts did not explain how this could be so under a statute one ofwhose purposes was to protect employees from arbitrary dismissal.

The provision was subsequently retained but in a modified manner ass 89(2)(c)(iii) of the Labour Act, inserted by s 29 of the Labour RelationsAmendment Act, No. 17 of 2002. It read:

(2) In the exercise of its functions, the Labour Court may –(a) ...(b) ...(c) in the case of a application made in terms of

subparagraph (i) of subsection (7) of section ninety-three, make an order for any of the following or anyother appropriate order –

(i) back pay ...(ii) ...(iii) reinstatement or employment tin a job:

Provided that any such determination shall specify

76 Followed in numerous cases including, ZESA v Bopoto 1997 (1) ZLR 126(S);Mhowa v Beverly Building Society 1998 (1) ZLR 546(S); Olivine Industries (Pvt)Ltd v Gwekwerere & Ors 2005 (2) ZLR 421 (S) at 428F; and Net*One Cellular(PVT) Ltd v Communications and Allied Services Workers Union of Zimbabweand 56 Employees S-89-05.

77 1999 (2) ZLR 77 (S).


an amount of damages to be awarded to theemployee concerned as an alternative to hisreinstatement or employment;

(iv) ...

Although the formulation of the reinstatement/damages proviso wasexactly the same with that in the Labour Relations Amendment Act(No. 12 of 1992) there was a change in the scope of application of theprovisions. Whereas s 96(1)(c)LRA 1992 applied generally todetermining authorities including the Labour Relations Tribunal, s89(2)(c)(iii)LA 2002 expressly stated that it applied to applicationsmade in terms of s 93(7)(ii) of the Labour Act. It did not expresslyapply to s 89(2)(a) when the court dealt with appeals. Prima faciethere was therefore a narrowing of the scope of application.

Despite the apparent change in the scope of application of theprovision, the courts mainly continued to apply the provision in thesame way as under s 96(1)(c)LRA 1992.78 They did not explain why therationale of the Hama decision should continue to apply generally,when its basis, that is the wide scope under s 96(1)(c), had now beenrestricted to the special s 93 (7) application. They did not explainwhy it was necessary to depart from the plain and express wording ofs 89(2)(3)(c) that expressly stated that it applied to the special s93(7) applications, including whether any absurdity would arise forinstance in comparison to the powers of the court in an appeal unders 89(2)(a) of the Act. Perhaps if they did, they might have come to adifferent conclusion as indeed the court did in obiter in Zimnat LifeAssurance Ltd v Dikinya.79

A further material amendment was introduced by s 29 of the LabourAmendment Act No. 7 of 2005 amending s 89(2)(c)(iii). The amendmentintroduced two further provisos to proviso (i), which potentiallyimpacted on the reinstatement/damages issue, as discussed below.

78 Mandiringa & Ors v National Social Security Authority 2005(2)ZLR 329(H) at333F; Olivine Industries (Pvt) Ltd v Gwekwerere & Ors 2005 (2) ZLR 421 (S) at428F; Net*One Cellular (PVT) Ltd v Communications and Allied Services WorkersUnion of Zimbabwe and 56 Employees S-89-05; Chitambo v ZESA Holdings (Pvt)Ltd & Anor LC/H/331/2013.

79 S-30-2010.


Present Law on Reinstatement under S 89(2)(C)Labour Act

In Mvududu v ARDA80 PATEL J specifically left the question of the fullimport of s 89(2)(c)(iii)LA 2005 open, although in obiter the judgeseemed to accept that the Labour Court has the discretion to orderreinstatement.

It is my respectful submission that s 89(2)(c)(iii) of the Labour Actdoes no more than substantially incorporate, with modifications, theposition already provided for under the general appeal power of theLabour Court under s 89(2)(a)LA 2005 and under modern commonlaw. That is the Labour Court can grant the remedy of reinstatementto an unlawfully or wrongfully dismissed employee who claims it, butsubject to the discretion of the court to decline the remedy wherethe employer discharges the onus that the employment relationshipis no longer tenable. A further modification being that unlike under s89(2)(a)LA 2005, a reinstatement order under s 89(2)(c)(iii) must beaccompanied with an alternative order for the payment of damagesby virtue of proviso (i) to s 89(2)(c)(iii). The proviso is for the benefitand exercise by the employee. The proviso though is not in materialconflict with s 89(2)(a) of the Labour Act as the court exercising itsgeneral equity powers can also include the same. It is also consistentwith trends in common law and is designed to facilitate the just,effective and expeditious resolution of labour disputes.

There are several grounds for the above approach. The starting pointis the amendment to s 89(2)(c)(iii) LA 2002 by s 29 of Act No. 7 of2005. This was highly significant. The amendment changed theformulation that had been used in both s 96(1)(c) of the LabourRelations Act and under Act No. 17 of 2002. Whilst retaining the provisoon the damages alternatives, it added two critical provisos, provisos(ii) and (iii). These provide the “coloured context” through whichproviso (i) must be understood. The provisos show the clear legislativeintention to retain reinstatement as the primary remedy for wrongfuldismissal as well as the essential principles of common law.

The first point is that despite the wording of proviso (i) the subsequentprovisos vest the Labour Court with the power to decide whether togrant reinstatement or damages. Proviso (ii) expressly states that “indeciding whether to award damages or reinstatement or

80 SC – 446-14.


employment…” Then can be no question of “deciding” if the employeris allowed to subsequently unilaterally opt out of reinstating and payingdamages. Proviso (ii) makes clear that the onus “to prove that theemployment relationship is no longer tenable” is with the employer.If the employer fails to discharge such onus, it follows thatreinstatement must be ordered. There would be no point in placingsuch onus on the employer, if the employer is allowed to subsequentlyunilaterally decide whether to reinstate or pay damages, as waspreviously held.81 But the opposite applies. Reinstatement may nolonger be practicable or because of changed circumstances makingthe employee now prefer damages instead of reinstatement asoriginally claimed. 82

Proviso (iii) reiterates the position, providing that “should damagesbe awarded instead of reinstatement as a result of an untenableworking relationship arising from unlawful or wrongful dismissal bythe employer, punitive damages may be imposed.” The wording isclear that the award may be damages or reinstatement, and that incase of the former punitive damages may be awarded. If proviso (i)precluded discretion on the Labour Court then the wording of proviso(iii) as with proviso (ii) would not make sense.

Under the three provisos the deciding agent is clearly the court, asunder common law and as acknowledged by labour scholars.83 Drawingfrom common law, proviso (ii) does not provide the court with anunfettered discretion but subjects it to the overall requirement ofwhether the “employment relationship is no longer tenable,” byreference to a non-exhaustive list of factors. Again drawing fromcommon law, the onus to establish why reinstatement should not applylies with the employer. alternative for damages were the employerhas proven that the relationship is no longer “tenable.”

81 BHP Minerals Zimbabwe (Pvt) Ltd v Takawira 1999 (2) ZLR 77 (S); GauntletSecurity Services (Pvt) Ltd. v Leornard 1997 (1) ZLR 583 (S).

82 As was tried, but unsuccessfully by the employee in BHP Minerals Zimbabwe(Pvt) Ltd v Takawira, supra; and in Mtetwa v Business Equipment CorporationS-25-04; and further affirmed in Business Equipment Corporation v Mtetwa S-14-07.

83 83G Makings states that after Act No. 7 of 2005, the ÒÉ decision as to whetherto order reinstatement or damages now lies with the dispute resolutionauthorityÓ, in G Makings, Useful Labour Cases, 4th ed ( Aquamor, Harare,2011) 44. See also C Mucheche (2014), supra at 48-49.


The second point is that s 89(2) must be read holistically andpurposively. In Sagitarian (PVT) Ltd t/a ABC Auctions v The WorkersCommittee of Sagitarian (PVT) Ltd,84 GWAUNZA JA, cited authorityto the effect that a “section, of whatever length, must have a unityof purpose... Separate subsections must all have some relevance tothe central theme which characterises the section.” That generalwords may be “coloured” by their context.

The powers of the Labour Court under s 89(2) generally must be readin line with the purpose of the Act under s 2A(1)(f) of the Act tosecure the just, effective and expeditious resolution of disputes.Employees also have a right to protection from unfair dismissal unders 12B(1) of the Act. It is now well-established that the normal orprimary remedy for unfair dismissal is reinstatement. A constructionthat makes the position of the “protected” employee under the Actworse than that of the ordinary employee under the common law, byvirtually giving the employer a veto power over reinstatement or to“buy out” such remedy cannot be consistent with the objectives ofthe section or the Act in general. Section 2A(2) requires that the Actbe construed in a manner that best ensures the attainment of itsobjectives.

The above interpretation also removes any unnecessary conflict thatmay be read between the powers of the Labour Court when hearing as 93(7) application and when exercising its general appeals powersunder s 89(2)(c) of the Labour Act. Under its broad power in terms ofthe later section the court may, but is not obliged to issue anaccompanying alternative order of damages as recognised in theDikinya case, supra. It generally should, for the convenience andexpeditious resolution of the dispute, if reinstatement subsequentlyprove impracticable after the judgment. This was the situationhistorically with a determining authority under its broad powers interms of 111(1)LRA 1985 and the more specific powers under s 112LRA1985. There was no necessary conflict.

Who Has the Right of Choice, Employee or Employer?

The wording of proviso (i) to s 89(2)(c) LA 2005 is clear that an orderfor reinstatement must be accompanied by an alternative order ofdamages. In Net*One Cellular (PVT) Ltd v Communications and Allied

84 2006 (1) ZLR 115 (S) at 118E -119C-E.


Services Workers Union of Zimbabwe and 56 Employees,85 CHIDYAUSIKUCJ stated;

It is quite clear from the above section (s 89 (2) (c) (iii)) thatthe Labour Court is enjoined to make an award of damages asan alternative to reinstatement.

The question though is who has the right of choice– does it remain theemployer per the Takawira decision or has this to change in light ofthe amendments to s 89(2)(c) under Act No. 7 of 2005? In the Hamacase the matter was not dealt with. Subsequently though the courts,starting with the Takawira decision, ruled that it was the employer.86

There was no justification for this. The wording of s 96 (1)(c) did notnecessarily mean that choice was with the employer. The courtacknowledged as much in the Takawira case, but went on to ascribethe right to the employer.

However, a holistic consideration of s 89(2) (c) shows that suchinterpretation is inconsistent with the section and the purpose of theAct. It also runs afoul of well established principles of common law onremedies. It is respectfully submitted that it is time for the courts toreconsider the issue, in view of the fact that Takawira was madebefore Amendment No. 7 of 2005.

Only an interpretation that gives the choice to the employee avoidsthe above pitfalls. Provisos (ii) and (iii) give the deciding power toaward reinstatement or damages to the court, but provided it is theemployee who has exercised their right to choose that as the primaryrelief. If not, the question does not arise. The court can only grantreinstatement if the employer has failed to discharge the onus toshow that relationship is no longer tenable. A reading that reposesthe employer with the power to unilaterally choose whether toreinstate or pay damages after the judgment, defeats the purpose ofthe provisos of vesting that power with the court, in pursuance of aclaim by the employee. It is illogical and runs counter to the verypurpose of provisos (ii) and(iii) to provide reinstatement as the firstremedy unless the employer has failed to discharge the onus.

Contrary to the argument in Takawira the reverse applies well. Whereasthe employer may fail to discharge the onus on it under proviso (ii)

85 S-89-05.86 Gauntlet Security Services (Pvt) Ltd. v Leornard 1997 (1) ZLR 583 (S); ZESA v

Bopoto 1997 (1) ZLR 126(S).


and hence reinstatement is ordered. But in practice the employer hasbefore it every tool to make such reinstatement impracticable forthe worker. Mucheche puts it well, comparing such an enforcedreinstatement to building “a permanent structure on sinking sand”:87

No matter how strongly an arbitrator or judge of the LabourCourt may feel about reinstatement, it will be ridiculous to forcean employee into a cage of reinstatement which is nothing shortof a circle of despair. Such an employee’s woes may becompounded by the fact that the belligerent employer maychoose not to give him/her work to do and render him/her awhite elephant.

Besides the above, many workers become scared of again facingemployers or managers that they fought over in court, andunderstandably prefer to move on even if they have wonreinstatement. This is especially true of small to medium employersand those without a trade-union protected environment.88 Theemployment relationship is inherently a personal one, in which thesedynamics are inevitable. This explains the series of cases that camebefore the courts where workers who had successfully wonreinstatement made a u-turn to seek damages. In Shabani v ZIMPLATS89

the court approved the Appellant’s request for damages as opposedto reinstatement on the grounds that he was now employed elsewhereand “that the atmosphere at the Respondent institution is no longerconducive for him to work under.”

Proviso (i) of s 89(2)(c)(iii) can therefore be read to be designed toallow the flexibility necessary in the application of specificperformance in the context of the employment relationship. Whereasunder the common law where a party is awarded specific performancebut the defendant fails to comply, the plaintiff has to bring a newaction for cancellation and damages, with the first order remainingextant and the second order standing independent.90 The above isclearly a long and cumbersome process.

87 C Mucheche (2014) 50.88 Deakin and Morris (2005) 522.89 LC/H/48/2009 [Makamure P].90 R Christie (2006), supra at 350 citing various authorities including, Schein and

Sliom v Joubert 1903 TS 428; Evans v Hart 1949 4 SA 30 (C ), and Papenfus vLuiken 1950 2 SA 508 (O). Also, but perhaps more narrowly see, Olivine Industries(Pvt) Ltd v Gwekwerere 2005 (2)ZLR 421(S) at 428F; Girjac Services (Pvt) Ltd vMudzingwa 1999(1) ZLR 243 (S) at 250C-D.


Christie states though that a plaintiff who sues for specific performancemay include an alternative claim for cancellation and damages andthis may be awarded. Alternatively, that even when not included inthe summons as an alternative claim, “cancellation and damages maybe awarded on a clause asking for general or other relief... or in theabsence of such a clause and without amendment of the declaration.”91

The trend under common law as outlined by Christie is one towardsremoving the obstacles to an effective remedy to a party who hasbeen awarded specific performance but the defendant fails to comply.It is in that light that Proviso (i) to s 89(2)(c)(iii) should be taken. Itcodifies the above trend by making it easier for the employee to getthe alternative remedy of damages where the one of reinstatementhas become impracticable or unobtainable for whatever reason. Theemployee does not have to institute fresh proceedings to get relief,but the Act places the obligation on the court to make the alternativeorder of damages to the one of reinstatement. Should there in fact beno problems, then that’s the end of the matter as the employee getsher or his primary remedy. But equally so, should reinstatement proveto be sinking sand, the employee gets the monetary compensation.Such a construction well accords with the purpose of the Act ofexpeditiously and justly resolving disputes. It is particularly suitedfor a court which is not governed by the strict formalities andtechnicalities of the civil courts.

The above interpretation of s 89(2)(c) is in accordance with commonlaw, unlike the one that virtually overturns the now establishedprinciple that reinstatement is a competent remedy for wrongfuldismissal. After all its the Hama decision itself that reiterated theprinciple that courts must not easily infer the ouster of common lawunless this is by express provision or by necessary implication.

Such an interpretation is also jurisprudentially sound and accords withthe legislative intention of protecting employees from unfair dismissaland promoting fair labour standards. Where the employer has failedto discharge the onus on it to show that the relationship is no longertenable, there is no reason why reinstatement should not be granted.Under fair dismissal legislation reinstatement is recognised as theprimary remedy for unfair dismissal. In some instances it may be theonly effective remedy as in cases of unfair discrimination against trade

91 R Christie, ibid.


unionists,92 or cases where the moral blameworthiness of the employeris particularly high as in cases of gender or racial discrimination orvictimisation of employees.93 The deadly side effect of the contraryinterpretation being that it encourages employers to unfairly dismissunion and workers committee activists, or discriminate against womenincluding sexual harassment or violate other fundamental rights ofemployees knowing fully well that the courts will allow them to buyout the victim.

This was exactly the Achilles heel of the old position, which rewardedthe guilty party by giving him, the “the opportunity to, as it were buyhis way out of his obligation”, as admitted in the Takawira case, supra.This is contrary to the well-established principle of common law thatthe choice of remedy lies with the wronged party, subject to thediscretion of the court, including specific performance.94 It is unfairfor the wrong-doer to have such choice as was done in the cases thatgave the employer such choice. Giving the employer the choice offendsthe nemo ex proprio dolo consequitur actionem maxim, “no onemaintains an action arising out of his own wrong”.95

The opposite applies where the worker is the one reposed with theright of choice. A purposive reading of s 89(2) avoids any unnecessaryconflict in interpretation of the powers of the Labour Court under s89(2)(a) and under s 89(2)(c) of the Act. A literal reading of s 89(2)(c)of the old Labour Act shows that the s 89(2)(c) jurisdiction of theLabour Court would, unlike the old s 96(1)LRA not apply generally,but only to a s 93(7) application. However, there is no need to look atit this way, as l previously argued. 96

Following the approach in Sagitarian (PVT) Ltd t/a ABC Auctions vThe Workers Committee of Sagitarian (PVT) Ltd, supra, the section

92 National Union of Textile Workers and Ors v Stag Packings (Pty) Ltd & Ors 1982(4) SA 151 (T); Jiah & Ors v PSC & Anor 1999 (1) ZLR 17 (S); Chitambo v ZESAHoldings (Pvt) Ltd & Anor LC/H/331/2013.

93 Commercial Careers College (1980) (Pvt) Ltd v Jarvis, supra94 Farmers’ Co-op Society (Reg) v Berry 1912 AD 343, held at 350, Ò ‘it is against

conscience that a party should have a right of election whether he would performhis contract or only pay damages for the breach of it.’ The election is ratherwith injured party, subject to the discretion of the Court.Ó

95 Mutasa v Masvingo Brick Tile LC/MS/13/05; Standard Chartered Bank Ltd vMatsika 1997 (2) ZLR 389 (S) and Mushaya v Glens Corporation 1992 (1) ZLR162.

96 M Gwisai (2006) 127, and also applied in Chitungwiza Municipality v MvududuLC/H/71/2009 p 3.


must be read with unity of purpose around its central theme. The twosubsections can be read together an din a non-conflictual manner.Under its general power in terms of s 89(2)(c) the court can apply thespecific powers provided under s 89(2)(c)(iii), including making anorder with an alternative of damages. But it is not compelled to andmay go beyond this, given the broad wording of the subsection. Theabove has always been the situation historically. The powers specifiedunder the present s 89(2)(c) of the Labour Act were similar to thoseof a determining authority under s 111(2) of the Labour Relations Act,1985. But the same authority also enjoyed broad unqualified powersunder s 111(1)LRA 1985, which are similar to the powers of the LabourCourt in terms of s 89(2)(c) of the Labour Act. This interpretation isconsistent with s 2A(2) of the Labour Act and best facilitates theLabour Court in implementing its broad equity jurisdiction.

Finally the above interpretation avoids possible glaring absurd results.For instance an interpretation that compels a mandatory damagesalternative order in which the employer has the choice to reinstateor pay, could lead to impalpable injustice in cases of unfair dismissalby constructive dismissal under s 12B(3)(a) of the Labour Act. Section89(2)(c) does not provide for an independent standing relief ofdamages, but only as an alternative to an order for reinstatement. Inone case an arbitrator, following the above rigid approach, made anorder of reinstatement or damages. But in constructive dismissal casesreinstatement clearly does not apply, the intolerable relationship beingthe reason the employee resigned. Only a flexible interpretation ofthe powers of the court that gives it authority to decide on what isthe applicable remedy, subject to the employee’s initial choice ofwhat relief to seek, is the correct approach.

Recommendations

To capture the above characters of the remedy of reinstatement thecourts and the legislature need to reformulate its current wording, toavoid confusion or subversion of the legislative intention. For instanceeven within the current framework of both s 89(2)(c)(iii) and s 89(2)(a) of the Labour Act, courts, arbitrators, labour officers anddesignated agents can formulate their orders appropriately to showclearly that the option of taking damages lies with the employee. Anorder could be worded as follows:

The appellant is to be reinstated into her former position withoutloss of salary and benefits from the date of dismissal to the date


of reinstatement less mitigation and should the appellant findthat reinstatement is no longer practicable or preferable, theappellant is to be paid damages as an alternative toreinstatement as may be agreed upon the parties or that failing,as may be determined upon application by this court.

Similarly there is need to amend s 89(2) (a) (b) and (c) of the LabourAct to achieve greater clarity. It would remove the reference to the s93(7) applications but provide for a general provision dealing withorders by the Labour Court and other determining authorities underthe Labour Act encompassing all applications, references or appealsto the court and /or other determining authorities like a labour officer,designated agent, arbitrator or determining authority under anemployment code or national model code. A useful reference to modelthe amendment of s 89(2) (b) (c) is the old s 111(1) and s 112 LRA1985 as read with s 107.

Finally the reinstatement/damages proviso should be re-worded toclearly spell out the right of choice lies with the employee wherereinstatement is no longer practicable or preferable after the courthas found in favour of the employee. For instance Proviso (i) couldthen read:

Reinstatement or employment in a job;

Provided that-(i) any such determination shall specify an amount of damages

to be awarded to the employee concerned as an alternativeto his or her reinstatement or employment if the employeefinds that reinstatement or employment is no longerpracticable or preferable.

REINSTATEMENT IN CASES OF PROCEDURAL IRREGULARITIES AND REVIEW

The third circumstance of reinstatement under statutes is where theLabour Court or the appropriate determining authority makes a findingthat the dismissal is affected by a material procedural irregularity orthe proceedings are set aside on review.

Irregularities may arise at various stages of proceedings under theLabour Act. This may be in hearings under an employment code orunder the national model code. It may be in hearings by arbitrators,labour officers or designated agents. The issue may be pertinent inappeals before the Labour Court or when the court exercises its generalreview jurisdiction or in applications.


The effect of procedural irregularities was well summarised in Maposav CMED (Pvt),97 where MATANDA-MOYO P (as she then was) held:

The law is very clear on the question of the effect of proceduralirregularities. Procedural irregularities can render the entireproceedings void, and if an act is void, then it is a nullity.

In Tamanikwa & Ors v Zimbabwe Manpower Development Fund,98

respondent failed to comply with the provisions of s 12B of the LabourAct but dismissed its employees using an alternative set of regulations,it was held:

Any disciplinary procedures which have been effected outsidethe peremptory provisions of s 12B are clearly unlawful. Thedismissal of the appellant was therefore null and void.

These decisions follow a longstanding line of cases dealing withprecursors to the Labour Act, notably Standard Chartered Bank ofZimbabwe Ltd v Matsika,99 dealing with statutory regulations oremployment codes.100 In other instances the courts have ruled thatthe effect of the procedural irregularities is to render the proceedingsat the very least voidable at the instance of the employee.101 Theabove must be read though in the context of the settled law that anirregularity which does not cause prejudice does not by itself vitiateproceedings. In Nyahuma v Barclays Bank (Pvt) Ltd102 it was held that;“..it is not all procedural irregularities which vitiate proceedings. Inorder to succeed in having proceedings set aside on the basis ofprocedural irregularity, it must be shown that the party concernedwas prejudiced by the irregularity.” Or put differently a party “shouldnot escape the consequences of his misdeeds simply because of afailure to conduct proceedings properly”,103 or because oftechnicalities.104

97 LC/H/81/2007. Cited, McFoy v United Africa Co. Ltd (1961) 3 AII ER 1169 at1167; Jacks Club of South Africa & Ors v Feldman 1942 AD 340 at 359.

98 2013(2)ZLR 46(S) at 61.99 Standard Chartered Bank of Zimbabwe Ltd v Matsika 1996 (1) ZLR 123 (S);

Mugwebie v Seed Co. Ltd & Anor 2000 (1) ZLR 93(S).100 Madoda v Tanganda Tea Co. Ltd 1999 (1) ZLR 374 (S); Standard Chartered Bank

Zimbabwe Ltd v Chikomwe & Ors S-77-00; Kukura Kurerwa Bus Co v MandinaLC/H/72/2008.

101 Minerals Marketing Corporation of Zimbabwe v Mazvimavi 1995(2) ZLR 353(S).102 2005 (2) ZLR 435 (S) 438E-F. Cited Jacks Club of South Africa & Ors v Feldman

1942 AD 340 at 359.103 Air Zimbabwe v Mensa S-89-04.104 Dalny Mine v Banda 1999 (1) ZLR 220 (S); Air Zimbabwe Corporation v Mlambo

1997 (1) ZLR 220 (S).


The effect of holding the dismissal null and void, is effectively toreinstate the employee in their former job, as the dismissal is takenas never having occurred. This is what was done in the Tamanikwaand Matsika decisions. The reinstatement though may be temporary.The employer is entitled to reinstitute fresh proceedings on the samefacts, but in a procedurally correct manner. This is what distinguishesreinstatement in cases of procedural irregularities from that ofreinstatement on the merits.

The Labour Court, on appeal may exercise its powers in terms of s89(2)(a)LA, to conduct a re-hearing to cure the irregularities, or ifthis is not possible, remit the matter. When this happens, theemployment relationship is deemed to continue. In the case of a re-hearing the court is starting afresh on a clean page and the effectivedate of termination is from “the date on which the irregularity iscured.”105 The finding of irregularity “means that the employee wasnever lawfully dismissed. He must therefore continue to be treatedas an employee pending the outcome of the hearing on remittal.” 106

The same situation obtains on review. Where proceedings are set asideon review, the status qua ante is restored, and in the case of dismissalthe employee is effectively reinstated in their former position.Reinstatement is automatic. There is no issue of discretion of awardingdamages, as would be the case on appeal.107 In ZFC Ltd v Geza,108 thecourt held:

The relief available on review is that proceedings or the decisionmay be ‘set aside or corrected’ ...Miss Geza asked for a greatdeal more than that. She wanted an order that ZFC Ltd reinstateher or pay damages. That is the kind of relief one seeks onappeal, not on review.

Where proceedings are set aside on review and the employeereinstated, as with the case of procedural irregularities in general,this may be only for a temporary period, as the employer is entitledto re-institute proceedings on the same charges but in a procedurallycorrect manner. This is why in cases of procedural unfairness it is

105 Dalny Mine v Banda 1999 (1) ZLR 220 (S).106 Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR (S) at 223.107 Muringi v Air Zimbabwe Corporation & Anor 1997 (2) ZLR 488 (S). Generally

see, Bailey v Healthy Professions Council of Zimbabwe 1993 (2) ZLR 17 (S);Health Professions Council v McGown 1994 (2) ZLR 329 (S) at 373C.

108 1998 (1) ZLR 137(S) at 139.


preferable to institute proceedings by way of an appeal rather thanan application in terms of s 89(1)(d1)LA when the court exercises itsgeneral review jurisdiction similar to that of the High Court. Asdiscussed above, an “appeal” under the Labour Act, is an appeal inthe wide sense and encompasses grounds of appeal based on proceduralirregularities or review, where appropriate, but on a narrower scalethan the general review jurisdiction of the Labour Court under s89(1)(d1) of the Act.109

REINSTATEMENT UNDER S 6 (2) OF THE NATIONAL EMPLOYMENT CODE

The final framework under which the issue of reinstatement may ariseunder the Labour Act is in terms of s 6 (2) of the Labour (NationalEmployment Code of Conduct), Regulations, 2006, the model code.

An employer who has good cause to believe that an employee hascommitted misconduct may suspend such employee and conduct ahearing into the alleged misconduct and within fourteen days handdown a determination.110 In terms of s 6 (2) the employer –

… may, according to the circumstances of the case-

a) serve a notice, in writing, on the employee concernedterminating his or her contract of employment, if thegrounds for his or her suspension are proved to his or hersatisfaction; or

b) serve a notice, in writing, on the employee concernedremoving the suspension and reinstating such employee ifthe grounds for suspension are not proved.

A question that arises is whether if the employee is not found guilty,reinstatement is automatic or the employer has discretion not toimpose reinstatement if the relationship has broken down?

The precursor to s 6(2) was s 3 (2) S.I. 371 of 1985,111 which wassimilarly worded but with the difference being that the determiningauthority was not the employer but a labour relations officer. Thecourts initially ruled that the determining authority had no discretion,but had to order reinstatement if his or her finding was that the

109 See also, DE van Loggerenberg, Superior Court Practice, 2nd ed. (Lose-leaf,Juta) A1-32.

110 Section 6 (1) Model Code.111 Labour Relations (General Conditions of Employment) (Termination of

Employment) Regulations, 1985.


employee was not guilty, and vice versa - United Bottlers (Pvt) Ltd vMurwisi 1995 (1) ZLR 246 (S).112 This position was overruled in Hamav National Railways of Zimbabwe113 where the court ruled that thecommon law position of discretion was retained under the Regulationsmoreso because under the amended s 96(1)(c)LRA it was mandatorythat an order for reinstatement be accompanied by an alternativeorder of damages. It is submitted that the situation under s 6(2) ofthe model code is now different and that where the employer doesnot find the employee guilty of the alleged offence the suspensionmust be removed and the employee reinstated. Reinstatement isautomatic.

This is logical, because the reinstatement/damages proviso is no longerapplicable under s 6 (2) of the model code. The provisions of s 6 (2)are clear and admit of no ambiguity, providing for “removing thesuspension and reinstating such employee if the grounds for suspensionare not proved.” The provisions are peremptory as per Tamanikwa &Ors v Zimbabwe Manpower Development Fund.114 In any case underthe model code we are dealing with a suspended employee ratherthan a dismissed employee.

Interpreting s 6 (2) of the model code in a discretionary manner, asmay be suggested because of the phrase in s 6 (2) that the employer,“may, according to the circumstances of the case”, defies commonsense and leads to glaring absurdities. “May” in those circumstancesreally signifies the peremptory. The changed structure and nature ofs 6 (2) of the model code clearly make the Murwisi case the moreapplicable precedent rather than the Hama decision.

Whereas under S.I. 371 of 1985, the determining authority was anindependent third party, the labour relations officer, who couldaccordingly carry out an objective exercise of discretion on whetherto grant reinstatement, and if not, assess damages. The same appliesto the Labour Court or an arbitrator under s 89(2) of the Labour Act.But this cannot be so under the model code. Under the code, it is thesame employer who charged the employee, conducted the hearingand found the employee not guilty, who should decide whether

112 Initially declared in obiter by MCNALLY JA in Masiyiwa v T M Supermarket 1990(1) ZLR 166, holding, ÒTo put it another way, he has a choice, but that choiceis governed, not by his discretion, but by his finding ÉÓ

113 1996 (1) ZLR 664 (S).114 2013(2)ZLR 46(S) at 61.


reinstatement should apply or not, and if not, assess damages. Thisclearly flies in the face of the “basic tenets of natural justice” andthe employee’s right to protection from unfair dismissal under s 12B(1).

If after a internal process that it completely runs and dominates theemployer has found the employee not guilty, then the logical thing isthat the employee be reinstated as provided in s 6 (2) (b), as arguedby Madhuku.115 Of course this raises problems where the relationshiphas broken down or the employee no longer wants reinstatement, asituation normally catered for by the alternative of damages. But thisis the fundamental problem of S.I. 15 of 2006 as a dispute resolutionsystem. It attempts to square a circle by impermissibly superimposinga pluralist based system on a unitarist based one. This contradictioncannot be resolved other than by either creating a semi-autonomousdetermining authority at the workplace made up of representativesof both the employer and employee as is normally done underemployment codes, or alternatively outsourcing this to an entirelydifferent third party, like the labour relations officer, as was doneunder S.I. 371 of 1975.

There is urgent need to address this anomaly. In the absence of this,an employee who no longer wants reinstatement can only resign afterthe reinstatement, unless she or he can sue for constructive dismissalwhere appropriate.

CONCLUSION

The above survey of the law, legislative and common law, shows thatthe remedy of reinstatement has come a long way, evolving from theposition of complete non-recognition under classical common law toone of general acceptance as a competent remedy and finally itsrecognition as the primary remedy for unfair dismissal. This can onlybe so under an Act whose declared purpose is inter alia, the attainmentof social justice and under a new constitutional dispensation thatenshrines labour rights including the right to fair labour practices andstandards.

With such clear and established legislative and constitutionalfoundations one can only hope that the judiciary will follow suit tofully recognise the remedy of reinstatement, for such is the only wayto ensure that the employee’s right to protection from unfair dismissaland to fair labour practices and standards is fully and finally realised.

115 L Madhuku (2015) 125-27.

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